The FBI Is Using a 1789 Law to Force Apple to Unlock the San Bernardino Shooter’s iPhone

For years Apple has presented itself as a strong defender of privacy and encryption, and CEO Tim Cook has made it clear that these issues are important to him. Now the company seems to be walking the walk as the FBI seeks to access data on the iPhone of one of the San Bernardino shooters. Cook wrote in an open letter today that Apple is “opposing” a federal order from a magistrate judge in California to create a backdoor into the phone.

The shooter’s iPhone 5C is locked with a passcode. The order says that Apple needs to create an update for the phone so it won’t automatically delete the stored data if the FBI enters too many incorrect passcode guesses. Basically, the agency wants to open the phone using “brute force,” meaning having a computer try every possible numeric passcode until it finds the right one. Cook argues that building software to override this and other security features would create a cascade effect, ultimately undermining the security of every Apple device.

Apple notes that in this case the FBI is attempting to mandate creation of a backdoor under the All Writs Act of 1789. The act has been used for years now to justify court orders that are “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law,” meaning it’s a way to compel aid and cooperation from third parties. Recently it has been used in a few cases related to decrypting smartphones, but not everyone agrees that it can extend to mandating that a company fundamentally undermine its security features.

In an explainer about the act from 2014, the Electronic Frontier Foundation argued that “the government cannot use an authority like the All Writs Act to force a company to backdoor its product. Compelling a company to re-engineer a product designed to provide robust encryption is the definition of unreasonably burdensome because it undermines the basic purpose of the product.”

Cook wrote that, “If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. … We feel we must speak up in the face of what we see as an overreach by the U.S. government.”

The American Civil Liberties Union said Wednesday that it supports Apple and would help with the legal battle. Staff attorney Alex Abdo said in a statement, “The Constitution does not permit the government to force companies to hack into their customers’ devices. Apple is free to offer a phone that stores information securely, and it must remain so if consumers are to retain any control over their private data. The government’s request … risks setting a dangerous precedent.”

If Apple can fight the government to protect user privacy and win, it will be the most revolutionary thing the company has done in awhile.